DAmou133

NOTICE: This opinion is subject to motions for rehearing under

Rule 22 as well as formal revision before publication in the New
Hampshire Reports. Readers are requested to notify the Reporter,
Supreme Court of New Hampshire, Supreme Court Building, Concord,
New Hampshire 03301, of any editorial errors in order that
corrections may be made before the opinion goes to press. Errors
may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the
Internet by 9:00 a.m. on the morning of their release. The direct
address of the court's home page is:
http://www.courts.state.nh.us/supreme
THE SUPREME COURT OF NEW HAMPSHIRE

___________________________
Rockingham
No. 2002-603
THE STATE OF NEW HAMPSHIRE
v.

MICHAEL D'AMOUR
Argued: July 10, 2003
Opinion Issued: October 10, 2003
Peter W. Heed, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the brief and orally), for the
State.

Landya McCafferty, assistant appellate defender, of Dover,

on the brief
and orally, for the defendant.

BRODERICK, J. The defendant, Michael D'Amour, appeals his

conviction on one count of possession of a controlled drug, see
RSA 318-B:26 (Supp. 2002), after a jury trial in the Superior
Court (Abramson, J.). On appeal, he contends that the Superior
Court (Coffey, J.) erred in denying his motion to suppress
evidence obtained during the warrantless search and seizure of
his backpack. We reverse and remand.

After a hearing on the motion to suppress, the superior

court found the following facts. Early on the morning of July
10, 2001, Officer MacDonald, of the Portsmouth Police Department,
was dispatched to the railroad tracks behind Bill's Used
Appliances to assist officers responding to a noise complaint
made by the store owners. At the scene, Officer MacDonald
assisted two other officers in arresting four men, including the
defendant. Following the defendant's arrest for criminal
trespass and resisting arrest, Officer MacDonald took him to
Portsmouth Hospital for treatment of several abrasions. At the
hospital, Officer MacDonald overheard the defendant tell a nurse
that he had asthma, for which he used an inhaler. After reading
the defendant his Miranda rights, see Miranda v. Arizona, 384
U.S. 436 (1966), Officer MacDonald took him to the Portsmouth
Police Department for booking. Once there, another police
officer took charge of the defendant when Officer MacDonald was
directed by the shift commander to retrieve the defendant's boots
from the hospital, and then return to the scene of the arrest to
check for property damage and ensure that nothing had been left
behind.

Approximately one hour after his initial dispatch, Officer

Page 1
 DAmou133
MacDonald arrived back at the appliance store. A small trailer,
owned by the store's proprietors, stood behind the store, some
thirty to fifty yards from the spot where the defendant was
arrested. Officer MacDonald noted that the trailer appeared to
be empty, but observed that its door was open and that a backpack
sat in its threshold. Observing no one and nothing else in the
area, the officer looked inside the backpack for identification.
Although he found none, he did detect three pills wrapped in
tissue paper and two asthma inhalers. Having remembered the
defendant's earlier disclosure that he used an inhaler for an
asthma condition, the officer took the backpack to the police
station to determine whether it belonged to the defendant.

Once there, Officer MacDonald asked the defendant if the

backpack was his and if he wanted to inspect it to make sure that
nothing was missing. After acknowledging ownership, the
defendant looked through the backpack and confirmed that its
contents were intact. Officer MacDonald asked him if he was
under a physician's care or taking any prescription medication.
The defendant said he was not. Because the pills in the backpack
had not been prescribed for the defendant, Officer MacDonald
arrested him on the additional charge of possession of a
controlled drug without a prescription. He then fully
inventoried the backpack's contents.
Prior to trial, the defendant moved unsuccessfully to
suppress any evidence obtained as a result of the search and
seizure of his backpack. After a two-day trial, the defendant
was convicted. This appeal followed.

The defendant argues that the trial court, in denying his

motion to suppress, erred in ruling that: (1) Officer
MacDonald's initial warrantless search and seizure of his
backpack was justified under the "community caretaking"
exception to the warrant requirement; and (2) the officer's
warrantless search of the backpack at the police station was
justified under the "inventory" exception to the warrant
requirement. Consequently, he contends that the introduction at
trial of evidence seized during the warrantless searches of his
backpack violated his rights under Part I, Article 19 of the New
Hampshire Constitution. Because we conclude that the trial
court's finding that the initial search and seizure of the
backpack was done solely as community caretaking was clearly
erroneous, we remand this case to the trial court for further
proceedings consistent with this opinion.

Our review of the superior court's order on a motion to

suppress is de novo, except as to any historical facts found.
See State v. Finn, 146 N.H. 59, 60 (2001). Such findings will
not be disturbed on appeal unless they are clearly erroneous.
See State v. McBreairty, 142 N.H. 12, 14 (1997).
Part I, Article 19 of our State Constitution provides that
every citizen has "a right to be secure from all unreasonable
searches and seizures of his person, his houses, his papers, and
all his possessions." Warrantless seizures are considered per
se unreasonable unless they fall within the narrow confines of a
judicially crafted exception. State v. Psomiades, 139 N.H. 480,
481 (1995). The State bears the burden of proving by a
preponderance of the evidence that a seizure or search falls
within one of these exceptions. See State v. Westover, 140 N.H.
375, 379 (1995); Psomiades, 139 N.H. at 481.

In Psomiades, we explicitly recognized a limited "community

caretaking" exception to the warrant requirement. Psomiades,
139 N.H. at 481-82. We held that the exception applies to the
seizure of property when the seizure constitutes no more than a
routine and good faith attempt, in the exercise of reasonable
Page 2
 DAmou133
caution, to safeguard a defendant's own property. Id. at 482.

Our recognition in Psomiades of the community caretaking

exception under our State Constitution noted its initial adoption
by the United States Supreme Court in Cady v. Dombrowski, 413
U.S. 433, 441 (1973). In that case, the Court observed:
Local police officers . . . frequently investigate
vehicle accidents in which there is no claim of
criminal liability and engage in what, for want of a
better term, may be described as community caretaking
functions, totally divorced from the detection,
investigation, or acquisition of evidence relating to
the violation of a criminal statute.

Cady v. Dombrowski, 413 U.S. at 441; see Psomiades, 139 N.H. at

481. We have also cited with approval People v. Ray, 981 P.2d
928, 931 (Cal. 1999), cert. denied, 528 U.S. 1187 (2000), for a
further delineation of the exception.
In the average day, police officers perform a
broad range of duties, from typical law enforcement
activities-investigating crimes, pursuing suspected
felons, issuing traffic citations-to "community
caretaking functions"-helping stranded motorists,
returning lost children to anxious parents, assisting
and protecting citizens in need . . . .
People v. Ray, 981 P.2d at 931; see State v. Denoncourt, 149
N.H. 308, 310 (2003); see also State v. Seavey, 147 N.H. 304,
311 (2001) (Duggan, J., dissenting).

While the "divorce" between the community caretaking

function and the role of the police in the detection,
investigation, or acquisition of evidence relating to the
violation of a criminal statute must be total, we conclude that
the absolute separation need only relate to a sound and
independent basis for each role, and not to any requirement for
exclusivity in terms of time or space. We reject the contention
that dicta in our case law requires that the separation of the
community caretaking function from the investigation of a
criminal matter be of a temporal or spatial nature. See
Denoncourt, 149 N.H. at 310 ("Evidence found in the course of
caretaking activities is usually admissible at trial."). But
see State v. Boyle, 148 N.H. 306, 308 (2002).

To hold that the police can never legitimately engage in

community caretaking activities merely because they are also
involved in the detection, investigation, or acquisition of
evidence concerning the violation of a criminal statute could
lead to absurd results. For example, while investigating a
crime, the police could happen upon an unopened wallet, seemingly
flush with cash. Under an overly narrow interpretation of the
"divorce" between community caretaking and investigation, the
police would not be allowed to seize the wallet for safekeeping
but would be required to leave it unprotected, even if they had
no inkling that the wallet was in any way connected to their
criminal investigation.
The State argues that United States v. Rodriguez-Morales,
929 F.2d 780 (1st Cir. 1991), cert. denied, 502 U.S. 1030 (1992),
supports the contention that the police may conduct a search of
lost property even when they suspect they will find evidence of a
crime. In Rodriguez-Morales, the First Circuit Court of Appeals
approved, under the Fourth Amendment to the Federal Constitution,
the removal of the defendant's automobile from the highway and
its impoundment at the state police barracks as a reasonable
exercise of the police's community caretaking function, once the
Page 3
 DAmou133
police discovered that neither the defendant nor his passenger
had a valid driver's license. Id. at 785-86. The court noted
that the fact the impoundment "stemmed in part from an
investigatory motive [did] not change either the analysis or the
result. As long as impoundment pursuant to the community
caretaking function is not a mere subterfuge for investigation,
the coexistence of investigatory and caretaking motives will not
invalidate the seizure." Id. at 787.
We agree. In addition:
[T]o justify a seizure under the community caretaking
exception,
the [police] officer must be able to point to specific
and articulable facts which, taken together with
rational inferences from those facts, reasonably
warrant the [community caretaking activity]. We judge
these facts by an objective standard: would the facts
available to the officer at the moment of the seizure
warrant a person of reasonable caution to believe that
the action taken was appropriate.
Boyle, 148 N.H. at 308 (quotation and citation omitted).
Consequently, we hold that a police officer engaged in a
criminal investigation may under limited circumstances also
perform independent community caretaking at the same time or
place, provided that it is not "a mere subterfuge for
investigation," Rodriguez-Morales, 929 F.2d at 787. Whether a
subterfuge exists shall be determined by the trial court under
an objective standard, see Boyle, 148 N.H. at 308. The question
of whether dual purposes on the part of the police concurrently
exist must receive careful scrutiny by the trial court in the
first instance.
In its order denying the defendant's motion to suppress,
the trial court stated:

Officer MacDonald's conduct in this case clearly

falls within
the community caretaking exception to our warrant
requirement. . . .
Officer MacDonald was sent back to secure the
crime scene after an arrest as part of his community
caretaking functions. He was not involved in a
further criminal investigation to detect and acquire
evidence, because the suspects had already been
arrested.
(Citation omitted.)

Our review of the record, however, shows that Officer

MacDonald's testimony at the suppression hearing contradicts the
trial court's finding that he was not involved in a further
criminal investigation to detect and acquire evidence.
Specifically, he testified that "[he] was directed by [the shift
commander] to go back to the scene to investigate the initial
complaint and look for any damage or left-over property . . . ."
On cross-examination, Officer MacDonald confirmed that "when
[the shift commander] told [him] to go back to the scene, [he
was] told to go check the area for any evidence or damage."
Further, he confirmed that, "in part," he was returning to the
scene "in order to figure out if . . . there was anything
additional that [he might] be able to use to charge these guys"
and that "[the police] never really finished securing the scene,
finish investigating the initial complaint. [The shift
commander] wanted me to go back, make sure there was no damage
to any personal property left behind or any other evidence left
behind."
Page 4
 DAmou133
In light of the testimony of Officer MacDonald, the State's
sole witness at the suppression hearing, the trial court's
finding that he was not involved in a further criminal
investigation to detect and acquire evidence is clearly
erroneous. Officer MacDonald was directed to return to the
scene, and he did so, with apparent mixed "investigatory and
caretaking motives." Rodriguez-Morales, 929 F.2d at 787.
Consequently, the trial court's finding that Officer MacDonald's
conduct "clearly falls within the community caretaking exception
to [the] warrant requirement" was based upon an erroneous
foundation. While the record before us raises a question of
whether community caretaking exists under the facts of this case
or, if it exists, whether its outlines can be distinguished from
the ongoing criminal investigation at the scene, we are compelled
to remand this matter to the trial court for a determination as
to whether mixed motives existed here and, if so, for an
application of the mixed motive analysis.
On remand, the trial court shall make factual findings as to
whether the search and seizure of the backpack, ostensibly
pursuant to the community caretaking function, was a mere
subterfuge for further criminal investigation. Because we today
adopt the standard enunciated by the First Circuit in Rodriguez-
Morales, the trial court may hold a new hearing if necessary
before making the required factual findings.

If the trial court finds that Officer MacDonald's search and

seizure of the backpack was in fact a mere subterfuge for further
criminal investigation, then the trial court's denial of the
motion to suppress was error and the evidence obtained during the
warrantless search and seizure must be suppressed. If so, the
court should order a new trial unless it finds that the error of
not suppressing the evidence in the first trial was harmless
beyond a reasonable doubt. See State v. McLellan, 146 N.H. 108,
113 (2001).

Because the trial court may find that Officer MacDonald's

search and seizure of the backpack was not a mere subterfuge for
further criminal investigation, and thus lawful under the
community caretaking exception, we will address the inventory
search at the police station in the interest of judicial economy.
See State v. Frost, 141 N.H. 493, 498 (1996).
The defendant contends that the trial court erred in
concluding that the inventory search, undertaken pursuant to the
police department's clearly established, written inventory
policy, was lawful, because the inventory search was actually
conducted before his arrest for possession of a controlled drug
without a prescription, contrary to the trial court's factual
finding.
The Portsmouth Police Department (department) standard
operating procedure regarding inventory searches reads, in
pertinent part:
Inventory searches of the arrestee, during
booking, and searches of the arrestee[']s property may
be undertaken without a warrant.
Justification for such routine searches is the
legitimate interest in protecting the confinement area
and the arrestee, and in facilitating the
administrative handling of personal belongings during
incarceration.
(Citation omitted.) Referencing this standard operating
procedure, the trial court concluded that "[a]t that point,
Officer MacDonald knew that the defendant possessed a controlled
Page 5
 DAmou133
drug without a prescription, charged him with that additional
offense, and inventoried the bag pursuant to the clearly
established, written . . . inventory policy."
Our review of the record, however, confirms that Officer
MacDonald's inventory search of the backpack preceded both the
defendant's arrest for possession of a controlled drug without a
prescription and his verification that the backpack belonged to
the defendant. As such, the trial court's factual finding that
the inventory search followed the defendant's arrest on the
second charge is clearly erroneous.
The State concedes that the inventory search was conducted
before the defendant's ownership of the backpack had been
established. The State contends, however, that the inventory
search was proper pursuant to the department's standard policy
for lost or mislaid property, an unwritten policy testified to
by Officer MacDonald. We express no opinion as to whether the
inventory search conducted before the defendant's arrest on the
second charge was proper under either the department's written
standard operating procedure or the alleged unwritten policy
testified to by Officer MacDonald. Instead, the trial court can
address these issues on remand, if necessary.
Reversed and remanded.

DALIANIS and DUGGAN, JJ., concurred; NADEAU, J., with whom

BROCK, C.J., joined, concurred in part and dissented in part.

NADEAU, J., concurring in part and dissenting in part. I

agree with the majority that "a police officer engaged in a
criminal investigation may under limited circumstances also
perform independent community caretaking at the same time or
place," provided that it is not a mere pretext for
investigation. See United States v. Rodriguez-Morales, 929 F.2d
780, 787 (1st Cir. 1991), cert. denied, 502 U.S. 1030 (1992). I
also agree with the majority that the trial court's finding that
Officer MacDonald was not involved in further criminal
investigation is clearly erroneous.
I respectfully dissent, however, from the decision to remand
this case to the trial court. I would instead hold, as a matter
of law, that the community caretaking in this case was
pretextual. See State v. Berry, 148 N.H. 88, 92 (2002).

The undisputed evidence in this record is that Officer

MacDonald initially went to the open trailer to investigate a
noise complaint. He returned to the trailer approximately an
hour after assisting in arresting the defendant and others
specifically to finish that investigation. He was directed, in
part, to check the area for "evidence" and to "figure out if .
. . there was anything additional that [he] may be able to use to
charge these guys." As he explained: "Everything happened
very fast. The fight was pretty intense. Everybody left for the
hospital. So we never really finished securing the scene, finish
investigating the initial complaint."

Although his sergeant had directed him to look for "damage

to any personal property left behind or any other evidence left
behind," Officer MacDonald admitted that there had not been any
complaints of damaged personal property or any indication that
the defendant had left any personal property behind. The
explanation that he returned to the scene to look for damage to
personal property or evidence left behind is doubtful at best.
Under these circumstances, I would hold, as a matter of law,
that Officer MacDonald's search and seizure of the backpack was
not "totally separate from the detection, investigation, or
Page 6
 DAmou133
acquisition of evidence relating to a criminal matter." State
v. Brunelle, 145 N.H. 656, 659 (2000). Because the evidence
indicates that the search was "a pretext concealing an
investigatory police motive," South Dakota v. Opperman, 428 U.S.
364, 376 (1976), the search was not a valid exercise of the
community caretaking function.
BROCK, C.J., joins in the opinion of NADEAU, J.

Page 7